Summary
defining a "judgment" as " court's final determination of the rights and obligations of the parties in a case"
Summary of this case from State v. CraigOpinion
No. 36700
Decided March 8, 1961.
Summary judgments — May be rendered, when — Order rendered pursuant to motion for — Not appealable, when — Judgment for part of relief sought.
1. A summary judgment, which represents a "final determination of the rights of the parties in action" and hence comes within the definition of a judgment set forth in Section 2323.01, Revised Code, can be rendered under Section 2311.041, Revised Code, only "if the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers and documents, and affidavits * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law * * * upon the whole case or for all the relief asked."
2. There can be no appeal from an order rendered pursuant to a motion for summary judgment which order does not purport to be a judgment upon the whole case or for all the relief asked, even though such order purports to be a judgment upon part of the case and for part of the relief asked.
APPEAL from the Court of Appeals for Summit County.
Plaintiff instituted this action against defendant by the filing of a petition alleging an agreement evidenced by a written memorandum, under which defendant was to employ plaintiff as general manager of its foundry division at $12,000 per year plus 10 per cent of the net profits of the foundry division to be figured before income taxes; that by its terms either party could terminate said agreement on 90 day's notice; and that plaintiff entered upon performance of his duties and operated such foundry as general manager from September 1, 1959, to November 20, 1959, when defendant terminated plaintiff's employment without notice. Plaintiff seeks recovery of $3,000, representing payments at the rate of $12,000 per year for 90 days after November 20, 1959, less $230.76 paid him for part of that period, and plaintiff also seeks recovery of 10 per cent of the profits before taxes of the foundry division from September 1, 1959, to a date 90 days after November 20, 1959.
The first defense of defendant's answer seeks to avoid the agreement of employment on the ground that it was induced by false statements and representations by plaintiff. The second defense alleges in effect that plaintiff did not perform the terms of the employment agreement and that therefore the 90-day notice was not required by the terms of that agreement.
Plaintiff filed a motion "for summary judgment * * * for * * * $8,527.19 with interest * * * for the reason that upon the pleadings and the affidavits and exhibits filed herewith, reasonable minds can come to no other conclusion except that the plaintiff is entitled to such judgment against the defendant."
Thereafter, on May 25, 1960, the trial court made an order providing in part:
"* * * the court finds that the plaintiff is entitled to summary judgment for the period of 90 days from the termination of his employment on the 20th of November 1959, based on his annual salary of * * * $12,000 * * *, less the period of 7 days * * * for which he has been compensated. It is, therefore, considered, adjudged and decreed * * * that the plaintiff recover judgment against the defendant for * * * $2,769.24. The court reserves for trial the balance of plaintiff's claim, for 10 per cent * * * of the profits from the date of his employment and as to such claim the matter is continued * * *."
The defendant filed notice of appeal to the Court of Appeals from that order, describing it as "a judgment rendered * * * on" May 25, 1960.
Plaintiff filed a motion in the Court of Appeals to dismiss the appeal "for the reason that such order of May 25, 1960, was an interlocutory order upon motion for summary judgment and not a final order * * *, there being reserved for trial question as to the balance of plaintiff's claim."
The cause is now before this court on appeal from the judgment of the Court of Appeals granting that motion and pursuant to allowance of defendant's motion to certify the record.
Messrs. Amer, Cunningham Schnur, for appellee.
Messrs. Brouse, McDowell, May, Bierce Wortman and Mr. Frank H. Harvey, Jr., for appellant.
The substance and most of the words of Section 2311.041, Revised Code, which became effective in 1959, have been taken from Rule 56 of the Federal Rules of Civil Procedure. Wills, A Proposed Summary Judgment Statute for Ohio, 19 Ohio State Law Journal, 1.
So far as pertinent, that section reads:
"Summary judgment may be granted in a civil action as provided in this section.
"* * *
"(B) * * * Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A summary judgment shall not be rendered unless it appears * * * [therefrom] that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made; the party against whom the motion for summary judgment is made is entitled to have such depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits construed most strongly in his favor. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
"(C) If on motion under this section summary judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits before it, shall if practicable ascertain what material facts exist without controversy and what material facts are actually and in good faith controverted. The court shall thereupon make an order on its journal specifying the facts that are without controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly."
As indicated by the words of the statute, a summary judgment which would represent a "final determination of the rights of the parties in action" and hence come within the definition of a judgment set forth in Section 2323.01, Revised Code, is to be rendered only "if the pleadings, depositions, answers to interrogatories, admissions of the genuineness of papers or documents, and affidavits * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." That this means that the moving party must be entitled to judgment as a matter of law "upon the whole case or for all the relief asked" is made abundantly clear by the last sentence of subdivision (B) and by subdivision (C) of the statute.
Thus, where, as in the instant case, an order claimed to be a judgment does not purport to be a judgment "upon the whole case or for all the relief asked," it will not amount to a judgment, except possibly a "judgment interlocutory in character," even though it purports to be a judgment. Coffman v. Federal Laboratories, Inc. (C.C.A., 3 — 1948), 171 F.2d 94. See State, ex rel. Jewish Children's Bureau, v. Juvenile Court (1961), 171 Ohio St. 496.
When there is an appealable final order or judgment, defendant will have an opportunity on appeal therefrom to question any errors in the proceeding which may have prejudiced him, including any made in granting the motion for summary judgment.
There can be no appeal from an order rendered pursuant to a motion for summary judgment which order does not purport to be a judgment upon the whole case or for all the relief asked, even though such order purports to be a judgment upon part of the case and for part of the relief asked.
Biggins v. Oltmer Iron Works (C.C.A., 7 — 1946), 154 F.2d 214, indicates that the trial court's order of May 25, 1960, should be reversed because it purports to be a judgment. However, the order in the Biggins case specifically provided for execution. There is no such provision in the order involved in the instant case. Since, as hereinbefore pointed out, it is not an order which amounts to a judgment, it can have none of the effects of a judgment, notwithstanding the judgment nomenclature that it contains.
As stated in Audi Vision, Inc., v. RCA Mfg. Co. (C.C.A., 2 — 1943), 136 F.2d 621:
"If the [trial court] * * * will take care in cases such as this to make it clear that its order is of the pretrial type * * *, the parties will then more carefully recognize their rights and the court will have retained full power * * * to make one complete adjudication on all aspects of the case when the proper time arrives."
The Court of Appeals was correct in dismissing the cause for want of a final order or judgment.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.